BarBri - NY Exam - July 2014 Forum

[sarahh]

I think the division between depraved indifference and reckless is a little arbitrary. I have gotten a few of those questions wrong. But based on what I have seen, if you kill someone by:

Shooting a gun in a crowded bar to try to scare people (with no intent to hit anyone): depraved indifference.
Cleaning your gun with a friend sitting next to you knowing it is loaded: reckless
Cleaning your gun with a friend sitting next to you not knowing it is loaded: negligence

[Guchster]

I think the division between depraved indifference and reckless is a little arbitrary. I have gotten a few of those questions wrong. But based on what I have seen, if you kill someone by:

Shooting a gun in a crowded bar to try to scare people (with no intent to hit anyone): depraved indifference.
Cleaning your gun with a friend sitting next to you knowing it is loaded: reckless
Cleaning your gun with a friend sitting next to you not knowing it is loaded: negligence

So the 2nd one is second degree manslaughter in NY? but involuntary manslaughter on MBE?

[sarahh]

I think the division between depraved indifference and reckless is a little arbitrary. I have gotten a few of those questions wrong. But based on what I have seen, if you kill someone by:

Shooting a gun in a crowded bar to try to scare people (with no intent to hit anyone): depraved indifference.
Cleaning your gun with a friend sitting next to you knowing it is loaded: reckless
Cleaning your gun with a friend sitting next to you not knowing it is loaded: negligence

So the 2nd one is second degree manslaughter in NY? but involuntary manslaughter on MBE?

That is my understanding.

[harmonep07]

I know the past MBE questions on Barbri say the format is different or whatever, but from those alone it seems that actual MBE questions are WAY more straightforward than the Barbri questions.

[turquoiseturtle]

I think the division between depraved indifference and reckless is a little arbitrary. I have gotten a few of those questions wrong. But based on what I have seen, if you kill someone by:

Shooting a gun in a crowded bar to try to scare people (with no intent to hit anyone): depraved indifference.
Cleaning your gun with a friend sitting next to you knowing it is loaded: reckless
Cleaning your gun with a friend sitting next to you not knowing it is loaded: negligence

So the 2nd one is second degree manslaughter in NY? but involuntary manslaughter on MBE?

That is my understanding.

I mostly agree with this.

I think both the first and the second one would be second degree manslaughter in NY. Just because, as I said earlier "depraved indifference" and "highly reckless murder" are different standards. And I'm not sure in NY that just shooting a gun in a crowded bar rises to the level of highly reckless murder so that it is 2nd degree murder.

But I'm not sure I agree that the second one is involuntary manslaughter on the MBE. I think it would be voluntary. I think cleaning it, knowing its loaded is probably reckless disregard rather than criminal negligence, which makes it voluntary manslaughter. But thats arguable.

Then I think the third one is also arguable on the MBE. It could be involuntary manslaughter or no homicide liability. Hard to say wether not knowing its loaded is criminal negligence. (I probably think so. Seems like you should always check to see).

The third one I think we don't have a NY crime for. Maybe third degree manslaughter exists? But it clearly isn't conscious disregard of a substantial risk, which is what it would have to be to qualify as second degree manslaughter.

[Guchster]

But I'm not sure I agree that the second one is involuntary manslaughter on the MBE. I think it would be voluntary. I think cleaning it, knowing its loaded is probably reckless disregard rather than criminal negligence, which makes it voluntary manslaughter. But thats arguable.

Involuntary manslaughter on the MBE is either: (1) criminal negligence (or recklessness under the MPC) or (2) killing in an unlawful act. So if it's going to fall into either of those categories, it looks like you need to see the statute to determine whether its an MPC state.

Voluntary manslaughter on the MBE looks like it's reserved for adequately provoked murders.

The third one I think we don't have a NY crime for. Maybe third degree manslaughter exists? But it clearly isn't conscious disregard of a substantial risk, which is what it would have to be to qualify as second degree manslaughter.

We have a crime in NY: criminally negligent homicide (page 11 of the CMR distinction for crim law) and mentioned in lecture.

[harmonep07]

I think the division between depraved indifference and reckless is a little arbitrary. I have gotten a few of those questions wrong. But based on what I have seen, if you kill someone by:

Shooting a gun in a crowded bar to try to scare people (with no intent to hit anyone): depraved indifference.
Cleaning your gun with a friend sitting next to you knowing it is loaded: reckless
Cleaning your gun with a friend sitting next to you not knowing it is loaded: negligence

So the 2nd one is second degree manslaughter in NY? but involuntary manslaughter on MBE?

That is my understanding.

I mostly agree with this.

I think both the first and the second one would be second degree manslaughter in NY. Just because, as I said earlier "depraved indifference" and "highly reckless murder" are different standards. And I'm not sure in NY that just shooting a gun in a crowded bar rises to the level of highly reckless murder so that it is 2nd degree murder.

But I'm not sure I agree that the second one is involuntary manslaughter on the MBE. I think it would be voluntary. I think cleaning it, knowing its loaded is probably reckless disregard rather than criminal negligence, which makes it voluntary manslaughter. But thats arguable.

Then I think the third one is also arguable on the MBE. It could be involuntary manslaughter or no homicide liability. Hard to say wether not knowing its loaded is criminal negligence. (I probably think so. Seems like you should always check to see).

The third one I think we don't have a NY crime for. Maybe third degree manslaughter exists? But it clearly isn't conscious disregard of a substantial risk, which is what it would have to be to qualify as second degree manslaughter.

But New York uses "depraved indifference" in the second degree murder statute.

[huntington]

On a scale of 1-10 how important do you guys think state distinctions are in a 50/50 state with a fairly high pass rate?

[pizzasodafries]

If I think someone has my property and I want to get it back by force, can it ever be a robbery in NY? My understanding is thar Robbery includes Larceny + force, so "claiming rights" over an item can't constitute the mens rea of larceny ever. Am I mistaken? Taking back ur own item from someone by gunpoint is menacing or some shit, but not Robbery, right?

[turquoiseturtle]

But New York uses "depraved indifference" in the second degree murder statute.

Yeah, I could be totally wrong, but there way that the CMR distinction presents it, it makes it seems like highly reckless murder, which is one of the forms of 2nd degree murder, is different than common law murder. The common law murder is "depraved heart" and is, from the CMR "reckless indifference to an unjustifiably high risk to human life."

Because NY has highly reckless murder, which 2nd degree murder, but also reckless murder, which is second degree manslaughter, there must be some different between those two. And the way I read them, I read the 2nd degree manslaughter standard as matching up with common law murder. While the 2nd degree, highly reckless murder, has to be something more.

[pizzasodafries]

On a scale of 1-10 how important do you guys think state distinctions are in a 50/50 state with a fairly high pass rate?

I think distinctions like small things like Property future interests being named differently are nothing, but Key difference such as Good Faith doesnt absolve faulty warrant, or informer needs reliability plus basis of knowledge, those stuff are pretty important if they test us on that.

[harmonep07]

If I think someone has my property and I want to get it back by force, can it ever be a robbery in NY? My understanding is thar Robbery includes Larceny + force, so "claiming rights" over an item can't constitute the mens rea of larceny ever. Am I mistaken? Taking back ur own item from someone by gunpoint is menacing or some shit, but not Robbery, right?

Yeah, you're right. The gun situation would be menacing (because there's no "reasonable apprehension" assault in NY), and it would be assault if you injured someone in the course of a robbery. But, since robbery is "forcible stealing," you couldn't steal something you have the lawful right to possess.

[turquoiseturtle]

But I'm not sure I agree that the second one is involuntary manslaughter on the MBE. I think it would be voluntary. I think cleaning it, knowing its loaded is probably reckless disregard rather than criminal negligence, which makes it voluntary manslaughter. But thats arguable.

Involuntary manslaughter on the MBE is either: (1) criminal negligence (or recklessness under the MPC) or (2) killing in an unlawful act. So if it's going to fall into either of those categories, it looks like you need to see the statute to determine whether its an MPC state.

Voluntary manslaughter on the MBE looks like it's reserved for adequately provoked murders.

The third one I think we don't have a NY crime for. Maybe third degree manslaughter exists? But it clearly isn't conscious disregard of a substantial risk, which is what it would have to be to qualify as second degree manslaughter.

We have a crime in NY: criminally negligent homicide (page 11 of the CMR distinction for crim law) and mentioned in lecture.

Yeah, you're right. Sorry, I didn't follow the flow chart all the way through. I'd say cleaning the gun knowing its loaded might be murder then, rather than involuntary manslaughter. But ultimately I think thats a close call and they won't make us decide if something is reckless or just criminally negligent.


Ahh, criminally negligent homicide, thanks. Clearly I haven't memorized all my NY crimes yet. I get stressed about confusing them on the MBE.

[harmonep07]

But New York uses "depraved indifference" in the second degree murder statute.

Yeah, I could be totally wrong, but there way that the CMR distinction presents it, it makes it seems like highly reckless murder, which is one of the forms of 2nd degree murder, is different than common law murder. The common law murder is "depraved heart" and is, from the CMR "reckless indifference to an unjustifiably high risk to human life."

Because NY has highly reckless murder, which 2nd degree murder, but also reckless murder, which is second degree manslaughter, there must be some different between those two. And the way I read them, I read the 2nd degree manslaughter standard as matching up with common law murder. While the 2nd degree, highly reckless murder, has to be something more.

But even at CL, depraved indifference is always something more than mere recklessness. I only ever see it on questions in two situations: in one, someone fires into a crowd, and in another, someone shoots intending to shoot over their head but hits them and kills them. In both cases, I think there's always depraved indifference.

[pizzasodafries]

If I think someone has my property and I want to get it back by force, can it ever be a robbery in NY? My understanding is thar Robbery includes Larceny + force, so "claiming rights" over an item can't constitute the mens rea of larceny ever. Am I mistaken? Taking back ur own item from someone by gunpoint is menacing or some shit, but not Robbery, right?

Yeah, you're right. The gun situation would be menacing (because there's no "reasonable apprehension" assault in NY), and it would be assault if you injured someone in the course of a robbery. But, since robbery is "forcible stealing," you couldn't steal something you have the lawful right to possess.

Thanks, also one more point, does the fact you have an unreasonable belief the thing is yours play a factor in a robbery?

Scenario 1- I watched a cleaning lady clearly steal my gold watch, I follow her into some alley, put a gun to her head and say give me back my watch this second.

Scenario 2- I think the cleaning lady stole my watch, not 100% sure since there were a few people in my house that day, i follow her into the alley and take back a watch via gunpoint. turns out the watch was either a different one or my wife actually sold it to her, so not actually mine anymore.

#1 would be Menacing, no Robbery, what would 2 be?

[sarahh]

But New York uses "depraved indifference" in the second degree murder statute.

Yeah, I could be totally wrong, but there way that the CMR distinction presents it, it makes it seems like highly reckless murder, which is one of the forms of 2nd degree murder, is different than common law murder. The common law murder is "depraved heart" and is, from the CMR "reckless indifference to an unjustifiably high risk to human life."

Because NY has highly reckless murder, which 2nd degree murder, but also reckless murder, which is second degree manslaughter, there must be some different between those two. And the way I read them, I read the 2nd degree manslaughter standard as matching up with common law murder. While the 2nd degree, highly reckless murder, has to be something more.

My understanding is that highly reckless and depraved indifference are the same thing basically. 2nd degree murder in NY, murder under the common law. Reckless is 2nd degree manslaughter in NY, involuntary manslaughter under the common law.

I based my list off of MBE questions that we had, but I am just going from my memory. I think the questions were in the MBE criminal law set, or maybe some from the simulated MBE day.

[encore1101]

If I think someone has my property and I want to get it back by force, can it ever be a robbery in NY? My understanding is thar Robbery includes Larceny + force, so "claiming rights" over an item can't constitute the mens rea of larceny ever. Am I mistaken? Taking back ur own item from someone by gunpoint is menacing or some shit, but not Robbery, right?

it depends on the possessory rights the victim had. if they had rightful possession, even if you're the true owner, you can still be convicted of larceny.

For example, if you loan me your game boy in exchange for my Bar review book for a week, but you later decide you want your game boy back that evening, I have superior possessory rights so taking it would be larceny, even though you're the true owner.

[pizzasodafries]

But New York uses "depraved indifference" in the second degree murder statute.

Yeah, I could be totally wrong, but there way that the CMR distinction presents it, it makes it seems like highly reckless murder, which is one of the forms of 2nd degree murder, is different than common law murder. The common law murder is "depraved heart" and is, from the CMR "reckless indifference to an unjustifiably high risk to human life."

Because NY has highly reckless murder, which 2nd degree murder, but also reckless murder, which is second degree manslaughter, there must be some different between those two. And the way I read them, I read the 2nd degree manslaughter standard as matching up with common law murder. While the 2nd degree, highly reckless murder, has to be something more.

But even at CL, depraved indifference is always something more than mere recklessness. I only ever see it on questions in two situations: in one, someone fires into a crowd, and in another, someone shoots intending to shoot over their head but hits them and kills them. In both cases, I think there's always depraved indifference.

Common law the difference between Depraved Heart and Crim Neg is the case of the shooting into train. If it is a passenger train, its depraved heart, if its a cargo train that usually has no people and my bullet hits a homeless guy who was sleeping in there, its Crim neg.

[turquoiseturtle]

But New York uses "depraved indifference" in the second degree murder statute.

Yeah, I could be totally wrong, but there way that the CMR distinction presents it, it makes it seems like highly reckless murder, which is one of the forms of 2nd degree murder, is different than common law murder. The common law murder is "depraved heart" and is, from the CMR "reckless indifference to an unjustifiably high risk to human life."

Because NY has highly reckless murder, which 2nd degree murder, but also reckless murder, which is second degree manslaughter, there must be some different between those two. And the way I read them, I read the 2nd degree manslaughter standard as matching up with common law murder. While the 2nd degree, highly reckless murder, has to be something more.

But even at CL, depraved indifference is always something more than mere recklessness. I only ever see it on questions in two situations: in one, someone fires into a crowd, and in another, someone shoots intending to shoot over their head but hits them and kills them. In both cases, I think there's always depraved indifference.

Thats fine, again I think the call between reckless indifference and criminal negligence in this scenario is kind of close. On the MBE they usually are pretty clear with the facts if they want it to be reckless.

I was more explaining the difference with regard to the first situation in the original question. The first situation in the original question I'd say is reckless indifference, so common law murder on the MBE, but I don't think it rises to highly reckless murder, so stays as second degree manslaughter in NY, rather than second degree murder.

[sarahh]

You can commit larceny or robbery of property that you own if you do not have current lawful possession of the property. For example, you turn your car over to a mechanic. You do not want to pay the mechanic, so you break in at night and steal the car back. You were not in lawful possession of the car, so it is larceny.

[pizzasodafries]

You can commit larceny or robbery of property that you own if you do not have current lawful possession of the property. For example, you turn your car over to a mechanic. You do not want to pay the mechanic, so you break in at night and steal the car back. You were not in lawful possession of the car, so it is larceny.

yeah got it, but what happens when u think u are in lawful possession? Even if not true, i thought assumption of ownership and rights negates the larceny every time.

[harmonep07]

If I think someone has my property and I want to get it back by force, can it ever be a robbery in NY? My understanding is thar Robbery includes Larceny + force, so "claiming rights" over an item can't constitute the mens rea of larceny ever. Am I mistaken? Taking back ur own item from someone by gunpoint is menacing or some shit, but not Robbery, right?

Yeah, you're right. The gun situation would be menacing (because there's no "reasonable apprehension" assault in NY), and it would be assault if you injured someone in the course of a robbery. But, since robbery is "forcible stealing," you couldn't steal something you have the lawful right to possess.

Thanks, also one more point, does the fact you have an unreasonable belief the thing is yours play a factor in a robbery?

Scenario 1- I watched a cleaning lady clearly steal my gold watch, I follow her into some alley, put a gun to her head and say give me back my watch this second.

Scenario 2- I think the cleaning lady stole my watch, not 100% sure since there were a few people in my house that day, i follow her into the alley and take back a watch via gunpoint. turns out the watch was either a different one or my wife actually sold it to her, so not actually mine anymore.

#1 would be Menacing, no Robbery, what would 2 be?

In NY, an unreasonable mistake is a defense if it negates an element of the offense. Thus, it can be a defense to intentional, knowledge, and reckless crimes. Mistake only has to be reasonable for negligence. So, in situation 2, if you were actually mistaken in your belief she stole the watch, it would negate the intent to steal, and this no robbery.

[sarahh]

But New York uses "depraved indifference" in the second degree murder statute.

Yeah, I could be totally wrong, but there way that the CMR distinction presents it, it makes it seems like highly reckless murder, which is one of the forms of 2nd degree murder, is different than common law murder. The common law murder is "depraved heart" and is, from the CMR "reckless indifference to an unjustifiably high risk to human life."

Because NY has highly reckless murder, which 2nd degree murder, but also reckless murder, which is second degree manslaughter, there must be some different between those two. And the way I read them, I read the 2nd degree manslaughter standard as matching up with common law murder. While the 2nd degree, highly reckless murder, has to be something more.

But even at CL, depraved indifference is always something more than mere recklessness. I only ever see it on questions in two situations: in one, someone fires into a crowd, and in another, someone shoots intending to shoot over their head but hits them and kills them. In both cases, I think there's always depraved indifference.

Thats fine, again I think the call between reckless indifference and criminal negligence in this scenario is kind of close. On the MBE they usually are pretty clear with the facts if they want it to be reckless.

I was more explaining the difference with regard to the first situation in the original question. The first situation in the original question I'd say is reckless indifference, so common law murder on the MBE, but I don't think it rises to highly reckless murder, so stays as second degree manslaughter in NY, rather than second degree murder.

Yes, in practice, it can be hard to tell what it is. I hope it is clear on the exam. I feel like it was not always clear on practice questions. Same with animals and strict liability. How am I supposed to know if a bee is a wild or domesticated animal?

[turquoiseturtle]

Yes, in practice, it can be hard to tell what it is. I hope it is clear on the exam. I feel like it was not always clear on practice questions. Same with animals and strict liability. How am I supposed to know if a bee is a wild or domesticated animal?

They told us several times in the lectures that it would always be a dog or a cat if its supposed to be domestic.

Then gave us questions with bees and cows. Which are apparently domestic.

[pizzasodafries]

If I think someone has my property and I want to get it back by force, can it ever be a robbery in NY? My understanding is thar Robbery includes Larceny + force, so "claiming rights" over an item can't constitute the mens rea of larceny ever. Am I mistaken? Taking back ur own item from someone by gunpoint is menacing or some shit, but not Robbery, right?

Yeah, you're right. The gun situation would be menacing (because there's no "reasonable apprehension" assault in NY), and it would be assault if you injured someone in the course of a robbery. But, since robbery is "forcible stealing," you couldn't steal something you have the lawful right to possess.

Thanks, also one more point, does the fact you have an unreasonable belief the thing is yours play a factor in a robbery?

Scenario 1- I watched a cleaning lady clearly steal my gold watch, I follow her into some alley, put a gun to her head and say give me back my watch this second.

Scenario 2- I think the cleaning lady stole my watch, not 100% sure since there were a few people in my house that day, i follow her into the alley and take back a watch via gunpoint. turns out the watch was either a different one or my wife actually sold it to her, so not actually mine anymore.

#1 would be Menacing, no Robbery, what would 2 be?

In NY, an unreasonable mistake is a defense if it negates an element of the offense. Thus, it can be a defense to intentional, knowledge, and reckless crimes. Mistake only has to be reasonable for negligence. So, in situation 2, if you were actually mistaken in your belief she stole the watch, it would negate the intent to steal, and this no robbery.

can you give me a good example for mistake in negligence, not sure how you can negate mens rea in a neg case where there is no intent.